Limited Liabilities Companies in the U.S.
and what "Berle-Means corporation" means
PGS Lécia Vicente mới công bố nghiên cứu mới có tựa đề Ownership Piercing. Gốc của vấn đề này có lẽ là ở Mỹ, LLC có hai loại member-managed LLCs và manager-managed LLCs (xem định nghĩa dưới đây). Bài này có thể là một xuất phát điểm để tìm hiểu về LLCs của Mỹ. Dưới đây là một số trích đoạn.
Ownership piercing entails investigating the reality of the company's governance and tracing the real ownership profile of the company. It means defining who materially controls the company (i.e., managers or members?) and how "tamed" or, in other words, restricted the members' property rights are considering the consensual agreements the members and other stakeholders entered into.
Those who own are not always in control. Therefore, those who control should be held accountable like the owners would if they were in control. In member-managed limited liability companies (LLCs), the members undertake management. In manager-managed LLCs, the management is carried out by the managers. In many manager-managed LLCs where the managers' duties and the members' rights stem from contractual obligations determined by the company's contractual framework, there is very little real ownership or control exercised by members. The company's contractual framework consists of the operating agreement and other hidden contracts that may set forth pre-emptive rights provisions and other restrictions that cause a de facto lack of marketability of the members' units…In light of the company's contractual framework, members are peculiarly vulnerable since they cannot remove the managers, nor is it easy for them to sell their units. I suggest that, under these circumstances, courts may be less willing to give managers the benefit of the doubt as it is done through the application of the business judgment rule.
The property rights that members hold in the LLC are hybrid. They are hybrid because, on the one hand, those property rights signal the investment position of the member (rights in rem). On the other hand, those same property rights are subject to governance limitations contractually defined in the LLC's operating agreement (rights in personam). Putting it differently, members' property rights are a blend of property rights and contract rights. For example, LLCs' operating agreements and default law usually restrict changes in these companies' ownership structures. As a result of those contractual restrictions, company members' ability to freely transfer their units is curtailed. Those restrictions have far-reaching effects, which I define as a manifestation of legal pleiotropy or variant of ownership in an LLC caused by the LLC’s contractual framework.
In the United States, it is important to differentiate member-managed from manager-managed companies in the LLC context. In member-managed companies, all members are managers. In manager-managed companies, only designated members or non-members or a combination of the two are managers. This article focuses on manager-managed LLCs.
In 1932, besides pointing out the corporation's increasingly political role, Berle and Means introduced us to the idea of separation of ownership and control in the corporation. The notion of separation of ownership and control remains the paradigm of U.S. publicly-held corporations today. Berle's and Means' findings are now considered intuitive. There are, however, circumstances that are not favorable to the development of a Berle-Means corporation. Some of those circumstances involve the LLC. The LLC is not a corporation. Indeed, the vast majority of the corporations are not of the Berle-Means type.
The LLC is not a Berle-Means corporation because it challenges the paradigm of separation of ownership and control. Most LLCs show no membership diversification and a lower level of separation of ownership and control. Another element to consider in explaining why the LLC is not a Berle-Means corporation is the correlation between ownership concentration and control. Typically, ownership is concentrated in the LLC since the LLC's units are not usually publicly traded. Concentrated ownership, uniform membership, and lower levels of separation of ownership and control are the characteristics that explain the distancing of the LLC from the Berle-Means corporation model.